CJEU judgments in cases C‑180/17 and C‑175/17

Wednesday, September 26, 2018

On 26 September, the CJEU delivered judgments in two cases relating to the scope of the right to an effective remedy provided for in Article 39 of Directive 2005/85/EC, Article 46 of Directive 2013/32/EU and Article 13 of Directive 2008/115/EC.

Case C-175/17: The case relates to the refusal of international protection and the imposition of an obligation to return, on a national of Iraq. After his appeals against the refusal were dismissed by a district court and the Council of State, the Dutch tax services sought the retroactive reimbursement of financial benefits, which the applicant had received according to Dutch law. The applicant challenged that request, but his action was dismissed by another district court. He appealed before the Council of State against that decision, which in turn stayed the proceedings in order to refer to the CJEU the question of the suspensory effect of proceedings against asylum decisions, an issue that would also affect the entitlement of the applicant to the granted benefits.

Case C-180/17: The case concerned two Russian nationals who were denied international protection and were obliged to return to their country of origin. The nationals appealed against that decision, but the District Court of The Hague dismissed their appeals. They challenged that dismissal before the Council of State, while also applying for interim measures, as their appeal before the higher court did not have automatic suspensory effect. The Council of State referred the question of automatic suspensory effect to the Court of Justice, deciding to grant interim protection until a ruling on the preliminary reference is issued.

In both judgments, the Court confirmed that both the wording, and the purpose, of the abovementioned provisions only require the Member States to provide for an effective remedy against decisions rejecting an asylum application or imposing a return obligation. This does not mean that States should also be obliged to provide an appeal against the first-instance appeals, or that an appeal at that instance should have automatic suspensory effect. According to the Court, the Directives in question seek to introduce minimum guarantees, rather than a second instance of judicial review.

Moreover, the Court referred to its own case law, mainly Gnandi and Samba Diouf, to reiterate its previous finding that the right to an effective remedy means that a remedy before a judicial body should be available to asylum applicants, without establishing a further requirement for two levels of jurisdictions. It also relied on ECtHR case law, to remind that even in cases of a complaint alleging a real risk of ill-treatment, Article 13 does not require Member States to set up a second level of appellate procedure, nor to confer suspensory effect on judicial proceedings.

Lastly, the Court also addressed the referring court’s statement, regarding the provision under Dutch administrative law of other forms of appeals with an automatic suspensory effect, in the context of the principle of equivalence. While restating the need for equal treatment of breaches of law in comparable situations, be it EU law or national law, it declined to examine whether the principle has been violated in the cases in question. As the parties involved did not express doubts on the observance of this principle and the case files did not contain any elements on the comparability of the different forms of appeals under Dutch law, the Court decided that such an issue should be evaluated by the national court. 

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.




Effective remedy (right to)
Right to remain pending a decision (Suspensive effect)